New & Noteworthy: Maui Court Cases

posted in: December 2018 | 0

Maui Goes to Court: Maui County is asking the U.S. Supreme Court to review – and overturn – the decision of the 9th U.S. Circuit Court of Appeals last February that found the county was operating its Lahaina wastewater treatment plant in violation of the federal Clean Water Act.

In its petition for cert, filed in late August, the county labels the appellate court’s decision as a “radical expansion of point source permitting” and repeatedly refers to a “bright-line test” to distinguish between point source and nonpoint source pollution. “Without this Court’s intervention,” the county’s attorneys, based in Richmond, Virginia, state, “a wide array of sources previously regulated outside the [National Pollutant Discharge Elimination System] point source program, like the underground injection control (UIC) wells at issue here, will be brought suddenly within it.”

Filing amicus briefs in support of the county are the conservative Pacific Legal Foundation and a group of 17 state governments and the governors of Kentucky and Mississippi. A third amicus brief was filed by the National Association of Counties, the National League of Cities, and a host of organizations representing municipal sanitation agencies and other interested parties.

Opposed to the petition are the Hawai‘i Wildlife Fund, the Sierra Club—Maui Group, the Surfrider Foundation, and the West Maui Preservation Society. These groups are the original plaintiffs.

In the brief filed by their attorney, David Henkin of Earthjustice, they dispute the county’s claim that the lower court’s decision, if upheld, will increase the number of facilities requiring NPDES permits “by several orders of magnitude.” “The determination whether an indirect discharge ‘is the functional equivalent of a discharge into the navigable water’ is fact-specific,” Henkin writes, to be made on a case-by-case basis.

“Even should the number of facilities requiring permits increase,” Henkin argues, many, if not most of them, could qualify for general permits, “which greatly reduce the administrative burden.” Of the 137,455 facilities nationally that have NPDES permits, he notes, more than two-thirds operate under such general permits.


Palauaea Beach

Maui Is Taken to Court: Another case involving Maui County is on appeal to the highest court in the nation – this one brought by Douglas Leone, one of the richest men in the country. Leone and his wife, Patricia Perkins-Leone, own coastal property in Makena, Maui. The county denied them permission to build a single-family residence on the lot. Leone appealed in state court, with the county’s denial ultimately upheld by the state Supreme Court in October 2017. (For details, see the cover article in the November 2017 edition of Environment Hawai‘i.)

Once again, the Pacific Legal Foundation is weighing in with an amicus brief, on behalf of itself, the Cato Institute, the Owners’ Counsel of America, the South- eastern Legal Foundation, University of Hawai‘i law professor David Callies, the Land Use Research Foundation of Hawai‘i, and the NFIB Legal Center. Also supporting Leone are briefs from the U.S. Chamber of Commerce and the conservative Center for Constitutional Jurisprudence.

Exploring the Abyss: Craig Smith of the University of Hawai‘i’s School of Ocean and Earth Sciences and Technology will be the featured speaker at Environment Hawai‘i’s annual dinner, to be held January 18 in Hilo’s ‘Imiloa Astronomy Center. Smith will describe the jaw-dropping finds he and his team made when exploring the seafloor of the Clarion-Clipperton zone. That area, which lies between Hawai‘i and Mexico, has been proposed for deep-ocean mining of manganese nodules.

In addition to a buffet dinner, the evening will include live music by Jazz X 2 and a silent auction. The cost is $70 a head, which includes a $35 tax-deductible donation.

Reserve your place now. Call 808 934-0115 to charge your order, or mail a check to the office: 190 Keawe Street, #29, Hilo HI 96720.

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